### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 40267 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

− Appellee ,

v ersus JUAN FRANCISCO NORIEGA

- ALANIS , A lso K nown as Juan Francisco Alanis

- Noriega,
Defendant

− Appellant

.

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:12

- CR

- 148

- 1

Before JOLLY, SMITH, and CLEMENT, Circuit Judges. PER CURIAM: *

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 23, 2013 Lyle W. Cayce Clerk Case: 13-40267 Document: 00512480708 Page: 1 Date Filed: 12/23/2013No. 13

- 40267 Juan Noriega

- Alanis appeals the within

- guideline , seventy

- seven - month sentence he received following his guilty plea of being an alien found unlaw

fully present in the United States after having been previously deported, in vi o lation of 8 U.S.C. § 1326. For the first time on appeal, he contends that the district court’s consideration of his most recent arrest for assault renders his sentence procedurally and substantively unreasonable. He also avers that the presumption of r easonableness should not attach to his within

- guideline sen

tence because U.S.S.G. § 2L1.2 lacks an empirical basis. He concedes, how ever, that the argument is foreclosed ; he seeks only to preserve it for fur ther review. S ee United States v. Rodriguez , 660 F.3d 231, 232

- 33 (5th Cir. 2011); United States v. Mondragon

- Santiago , 564 F.3d 357, 366

- 67 (5th Cir. 2009). The newly raised procedural

- and substantive

- unreasonableness argu

ments are reviewed for plain error only. See United States v. Jones , 484 F.3d 783, 792 (5th Cir. 2007) ; see also United States v. Peltier , 505 F.3d 389, 391

- 92 (5th Cir. 2007)

. To establish plain error, Noriega

- Alanis must show a forfeited error that is clear or obvious and that affects his substantial rights. See Puckett

v. United States , 556 U.S. 129, 135 (2009). If he makes such a showing, this court may exercise its discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id

. Noriega

- Ala nis contends that the district court e rroneously considered his “bare arrest record.” To the c ontrary, the p resentence r eport ( “ PSR ” ) not only listed the alleged offense for which he was arrested but included addi

tional infor mation as to the facts under lying the arrest and why prosecution did not result. See United States v. Harris , 702 F.3d 226, 230

- 31 & n.1 (5th Cir. 2012) ; cf. United States v. Windless , 719 F.3d 415, 418, 420

- 21 (5th Cir. 2013). Nori ega - Alanis did not object to the PSR or offer reb uttal evidence. The

2 Case: 13-40267 Document: 00512480708 Page: 2 Date Filed: 12/23/2013No. 13

- 40267 court therefore did not plainly err in considering the information in the PSR concerning the arrest when denying the request for a downward vari ance. See Harris , 702 F.3d at 231 ; see also Puckett , 556 U.S. at 135

. Because the sentence i s within the guideline range, it is presumptively reasonable. See United States v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009)

. Noriega

- Alanis urges, however, t hat the district court’s consideration of his bare arrest record constituted considera tion of an improper factor and thus that the presumption of reasonableness has been rebutted. The district court considered Noriega

- Alanis ’s personal history and the circumstances of his illegal

- reentry offense, b alancing those factors against his length y and violent criminal past and denying his request for a sentence below the guideline range based in part on the court’s rejection of the claim that he was a changed man, as evidenced by the fact that he was recently arrested for assaulting for hitting hi s pregnant wife. The court expressly gave more weight to other 18 U.S.C. § 3553(a) factors, namely Noriega

- Alanis ’s significant crim

inal his tory and the need to protect the public from future crimes and to pro

vide deter rence. T he court did not plainl y err in considering the prior arrest when impos ing a sentence within the guideline range , and Noriega

- Alanis has fail ed to rebut the presumption of reasonableness that is accorded a within

guideline sentence. See Harris, 702 F.3d at 301; Cooks , 589 F.3d at 186 ; see also Puckett , 556 U.S. at 135

. Accordingly, t he judgment is AFFIRMED.

3 Case: 13-40267 Document: 00512480708 Page: 3 Date Filed: 12/23/2013